Best v. St. Vincents Hospital

Opinion

03 Cv. 0365 (RMB) (JCF).

July 2, 2003.

REPORT AND RECOMMENDATION

JAMES FRANCIS, Magistrate Judge

William Best, who is alleged to have active tuberculosis ("TB"), brings this action pro se pursuant to 42 U.S.C. § 1983, claiming violations of his Fifth and Fourteenth Amendment rights to due process of law under the United States Constitution. Mr. Best contends that the defendants, St. Vincents Hospital ("St. Vincents") and Bellevue Hospital ("Bellevue") have deprived him of his liberty by detaining him against his will because of his condition. Mr. Best's complaint designates "St. Vincents, Bellevue et al." as defendants. Although he fails to identify what other parties are intended to be named as defendants, the Complaint discusses actions taken by the City of New York and the New York City Department of Health and Mental Hygiene ("DOHMH"). Accordingly, those two entities as well as Bellevue shall be collectively referred to as the "City defendants." St. Vincents has moved to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The City defendants have moved under Rule 12(c) for judgment on the pleadings. For the reasons set forth below, I recommend that these motions be granted.

The proper name of this entity is St. Vincent's Catholic Medical Centers of New York, Inc., but I will refer to it as it is designated in the Complaint.

Background

Mr. Best initially admitted himself to St. Vincents on November 15, 2002, complaining that he had been coughing up blood. (Transcript of Hearing dated Dec. 13, 2002 ("12/13/02 Tr."), attached as Exh. G to Declaration of Michelle Goldberg-Cahn in Support of City Defendants' Motion for Judgment on the Pleadings dated March 24, 2003 ("Goldberg-Cahn Decl.") at 14). After several tests including chest x-rays and sputum samples, Mr. Best was found to have active TB. (12/13/02 Tr. at 15). During his initial interview at St. Vincents, Mr. Best informed his doctors that he had been infected with TB ten years earlier but had never received treatment. (12/13/02 Tr. at 14). Mr. Best was immediately started on medications used to treat TB, including rifampin, isoniazide, pyrazinamide, and ethambutol. (12/13/02 Tr. at 15). Additionally, Mr. Best received counseling on the nature, treatment, and transmission of TB. (12/13/02 Tr. at 16). On November 25, 2002, prior to completion of his inpatient treatment for TB, Mr. Best expressed his intent to leave the hospital. (12/13/02 Tr. at 17; Affidavit of Gaspar Pena dated Nov. 27, 2002 ("Pena Aff."), attached as Exh. D to Goldberg-Cahn Decl., ¶ 5(c)). At that point, the hospital did not have a discharge plan that would ensure the safety of both Mr. Best and the community. (12/13/02 Tr. at 17). Accordingly, the hospital contacted DOHMH, which in turn issued a Notice of Obligation to Isolate ("Isolation Notice") pursuant to New York State Sanitary Code, 10 N.Y.C.R.R. § 2.27 and the New York City Health Code § 11.47, authorizing the hospital to isolate Mr. Best pending an evaluation by the Commissioner of Health as to whether an Order of Detention should ultimately be issued. (Isolation Notice, attached as Exh. A to Goldberg-Cahn Decl.). On November 26, 2002, because of the severe risks associated with the transmission of TB, as well as the high likelihood of transmission given Mr. Best's unwillingness to separate himself from the community, DOHMH issued a Commissioner's Order pursuant to Health Code § 11.47(d)(4) (referred to as a "(d)(4) Order"), requiring Mr. Best to be detained for TB treatment. (Order for Detention Related to a Case of Active Tuberculosis dated Nov. 26, 2002, attached as Exh. B to Goldberg-Cahn Decl.). The (d)(4) Order stated that Mr. Best would no longer be detained once DOHMH determined that he had completed the appropriate course of TB treatment. (Goldberg-Cahn Decl., Exh. B at 3rd unnumbered page). Mr. Best was subsequently transferred to Bellevue Hospital on November 26, 2002. (12/13/02 Tr. at 17).

At Bellevue, Mr. Best continued to express his desire to leave the hospital. (12/13/02 Tr. at 18). In accordance with Health Code § 11.47(e), once Mr. Best requested release, legal counsel was to be provided for him, and on November 26, 2002, Dennis Houdek was appointed to serve as his attorney. (Goldberg-Cahn Decl., Exh. C). The City and DOHMH sought an order authorizing the continued detention of Mr. Best until DOHMH determined that (1) he was no longer infectious; or (2) there was a change in circumstances that indicated that he could be adequately separated from others so as to prevent the transmission of TB. (Order to Show Cause, attached as Exh. D to Goldberg-Cahn Decl.). On December 2, 2002, Justice Phyllis Gangel-Jacob signed the Order to Show Cause and directed that the (d)(4) Order "remain in full effect, and that [Mr. Best] remain in detention pending the hearing and determination of the application." (Order to Show Cause dated 12/4/02, attached as Exh. E to Goldberg-Chan Decl.).

Pursuant to Justice Gangel-Jacob's Order, a hearing was held on December 13, 2002, before Supreme Court Judicial Hearing Officer ("JHO") Bernard Jackson in courtroom facilities located at Bellevue. The purpose of the hearing was to determine whether an order should be granted authorizing the continued detention of Mr. Best until he was no longer infectious or could be adequately separated from others to prevent TB transmission. (12/13/02 Tr. at 4). At the hearing, Chrispin Kambili, Director of Medical Affairs at the Bureau of Tuberculosis Control, testified about Mr. Best's medical history and course of treatment. (12/13/02 Tr. at 14-19). He also explained that Mr. Best would be considered infectious until he had three consecutive sputums that tested negative for TB bacteria. (12/13/02 Tr. at 19, 27). At the time of the hearing, Mr. Best had two negative sputums and was waiting on the results from a third test conducted that day. (12/13/02 Tr. at 19-21). Mr. Best testified that he had been living in a rooming house in Staten Island, working part time doing "asbestos work" or "messenger work," and was interested in moving to Florida within a few weeks. (12/13/02 Tr. at 25, 26, 29). Counsel for the City argued that the (d)(4) Order should be continued until Mr. Best was no longer deemed infectious due to his uncertain housing situation, his intention to fly on an airplane, and his inconsistent sputum results. (12/13/02 Tr. at 33). Mr. Best's attorney asserted that Mr. Best was "on the verge of three negative sputums" and that he "has been deprived of his liberty enough." (12/13/02 Tr. at 32). The JHO issued an Order continuing the (d)(4) Order until such time as (1) Mr. Best completed an appropriate prescribed course of medication for TB or (2) a change of circumstances indicated that Mr. Best could be "relied upon to participate in and complete an appropriate prescribed course of medication for [TB] without being in detention." (Order dated December 13, 2002, attached as Exh. H to Goldberg-Cahn Decl.).

Mr. Best's medical records reflect that on or about December 28, 2002, he began refusing to take any of the prescribed medications. (Affidavit of Gary Cavallino dated January 17, 2003 ("Cavallino Aff."), ¶ 5(h), attached as Exh. K to Goldberg-Cahn Decl.). In an undated letter sent to the Court by Mr. Best, he writes "I finally decided on 12-27-02 after taking medication [for] 41 days that if I wasn't cured it was either [the] wrong medication or [it] just wasn't working on my body and from then 12-27-02 through 1-9-03 I've taken nothing and feel excellent." (Undated letter from William Best, at 5). On January 14, 2003, Dr. Eric Leibert, the Acting Assistant Director of the Bellevue Chest Service wrote a letter to Dr. Paul McCullough, Medical Director of the TB Control Program Regulatory Affairs Unit of DOHMH informing him that Mr. Best was no longer taking medication and requesting that Mr. Best's detention order be modified pursuant to Health Code § 11.47(d)(5). (Letter from Dr. Eric Leibert dated Jan. 14, 2003 ("Leibert Letter"), attached as Exh. I to Goldberg-Cahn Decl.). Dr. Leibert stated that he believed "Mr. Best remains a significant threat to public health. He remains infectious. His insight and judgement are poor. I am afraid that if he were released for any reason that he would certainly not take his medication and that he would leave New York." (Leibert Letter).

New York City Health Code § 11.47(d)(5) provides for the detention:

in a hospital or other treatment facility of a person (i) who has active tuberculosis, or who has been reported to the [DOHMH] as having active tuberculosis with no subsequent report to the [DOHMH] of the completion of an appropriate prescribed course of medication for tuberculosis; and (ii) where there is a substantial likelihood, based on such person's past or present behavior, that he or she can not be relied upon to participate in and/or to complete an appropriate prescribed course of medication for tuberculosis and/or, if necessary, to follow required contagion precautions for tuberculosis.

After being advised of Mr. Best's refusal to take medication, DOHMH issued an Order pursuant to Health Code § 11.47(d)(5) on January 15, 2003 (the "(d)(5) Order"), on the basis of Mr. Best's "inability and/or unwillingness to complete a prescribed course of treatment for tuberculosis in any less restrictive setting." (Goldberg-Cahn Decl., at 3). The (d)(5) Order differs from the previously issued (d)(4) Order in that an individual with active TB who is not infectious can still be ordered detained in a hospital or treatment facility if there is a substantial likelihood that based on this person's past and present behavior he cannot be relied upon to complete an appropriate prescribed course of medication. A (d)(4) Order is based on the likelihood that an individual will transmit TB because he is infectious, whereas a (d)(5) Order is based on the likelihood that an individual will transmit TB, even if not infectious, because of an unwillingness or inability to take medication.

DOHMH records reflect that Mr. Best again requested release from detention on January 15, 2003. (Affirmation of Emergency of Michelle Goldberg-Cahn dated Jan. 17, 2003, attached as Exh. K to Goldberg-Cahn Decl., ¶ 6). Health Code § 11.47(e) requires the DOHMH Commissioner to apply for a court order authorizing the detention within three business days after a patient requests release and mandates that detention shall not continue for more than five business days after the patient requests release from detention absent a court order. Accordingly, the City of New York and DOHMH submitted an Order to Show Cause, dated January 17, 2003, to the New York State Supreme Court inIn re City of New York v. Best, Index No. 400179/03. (Order to Show Cause, attached as Exh. K to Goldberg-Cahn Decl.). On January 21, 2003, Supreme Court Justice Lucindo Suarez signed the Order to Show Cause and further ordered that the (d)(5) Order "remain in full effect, and that [Mr. Best] shall remain in detention pending the hearing and determination of [the City's] application." (Order dated Jan. 27, 2003, attached as Exh. L to Goldberg-Cahn Decl., at 2).

Mr. Best requested release on January 15, 2003, a Wednesday. The third business day after this request was January 21, 2003, since the Martin Luther King, Jr. Observance Day occurred on Monday, January 20, 2003. The City's papers were submitted to the New York Supreme Court on January 21, 2003. Justice Suarez signed the Order on that day. In accordance with Justice Suarez's Order, the City was not required to serve Mr. Best or his attorney until January 27, 2003. The Affidavits of Service indicate that both Mr. Best and his attorney, Dennis Houdek, were personally served with copies of the signed order on January 22, 2003. (Goldberg-Cahn Decl., Exh. I).

Pursuant to Justice Suarez's Order, a hearing was held on February 14, 2003, before the Honorable Millard Midonick in the courtroom facilities located at Bellevue ("2/14/03 Hearing") to determine whether the (d)(5) Order was warranted. At the hearing, Mr. Best testified that he had not taken medication for two months. (Transcript of hearing dated Feb. 14, 2003 ("2/14/03 Tr."), attached as Exh. N to Goldberg-Cahn Decl., at 16). Dr. McCullough testified that Mr. Best had been repeatedly informed by nursing staff at Bellevue about the need for medical compliance. (12/14/03 Tr. at 17). Mr. Best was also reevaluated by the Bellevue psychiatric service. (2/14/03 Tr. at 17-18). The psychiatrist diagnosed Mr. Best as having a bi-polar illness in the "manic phase." (2/14/03 Tr. at 18). During the hearing, it was established that on January 11, 2003, Mr. Best had a third negative sputum test. (2/14/03 Tr. at 19). The hospital was hesitant to rely on those results, however, since noninfectious tests are not used as the release benchmark if the patient has stopped taking medication. Dr. McCullough testified that "[t]he lack of taking medication would possibly suggest that some small number [of TB bacteria] of hearing dated Feb. 14, 2003 ("2/14/03 Tr.") at 16, would still be in the sputum and [would] generally grow out of a culture" which would take "approximately six to eight weeks to grow." (2/14/03 Tr. at 19). Moreover, "by stopping his medicine, [Mr. Best's] disease is just going to continue on being active and infectious." (2/14/03 Tr. at 14). At the conclusion of the 2/14/03 hearing, Justice Midonick found that "confinement must be continued until medical evidence shows that [Mr. Best is] well." (2/14/03 Tr. at 51). Justice Midonick issued an order mandating Mr. Best's continued detention until DOHMH or the Court determined that (1) he had completed an appropriate prescribed course of mediation for TB; or (2) that a change of circumstances existed that would indicate that Mr. Best could be relied upon to participate in and complete an appropriate prescribed course of medication for TB. (Order dated Feb. 14, 2003 ("2/14/03 Order"), attached as Exh. 0 to Goldberg-Cahn Decl.). The order requires that DOHMH and the City "make an application to [the Supreme] Court within ninety (90) days following the signing of [the] Order seeking [the court's] authorization for [Mr. Best's] continued detention if [Mr. Best] remains in detention at that time and [DOHMH and the City] conclude that continued detention pursuant to Health Code § 11.47 is warranted." (2/14/03 Order).

By way of an Order to Show Cause dated May 9, 2003, the City defendants sought further review of Mr. Best's detention status. On May 12, 2003, New York State Supreme Court Justice Martin Schoenfeld signed an Order to Show Cause authorizing the continued detention of Mr. Best pending hearing and determination of the City's application. (Order dated May 14, 2003, attached to letter to the Court from Michelle Goldberg-Cahn dated June 23, 2003). ("Goldberg-Cahn 6/13/03 Letter"). On June 13, 2003, a hearing in connection with the Order to Show Cause was held in the courtroom at Bellevue before Judicial Hearing Officer Barnard Jackson. Mr. Best was represented by Amanda Tarkow of the Supreme Court Mental Hygiene Legal Services. At the conclusion of the hearing, JHO Jackson again ordered that Mr. Best's detention should continue until he has completed the prescribed course of medication, or until a change in circumstances indicated that Mr. Best could be relied upon to complete the prescribed course of medication absent detention. (Order dated June 13, 2003 ("6/13/03 Order"), attached to Goldberg-Cahn 6/23/03 Letter). The Order states that the City defendants must make an application to the Supreme Court within 90 days for any further continuation of Mr. Best's detention. (6/23/03 Order).

Mr. Best commenced this action on December 19, 2002. The City defendants filed their motion for judgment on the pleadings on March 25, 2003, and St. Vincents filed its motion to dismiss on March 26.

Discussion

A. Standard for Dismissal

In considering a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the court must accept as true all factual allegations in the complaint and must draw all inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,507 U.S. 163, 164 (1993); York v. Association of the Bar of the City of New York,286 F.3d 122, 125 (2d Cir. 2002); Hernandez v. Coughlin,18 F.3d 133, 136 (2d Cir. 1994). Accordingly, a complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson,355 U.S. 41, 45-46 (1957) (footnote omitted). These principles are even more strictly applied where the plaintiff alleges civil rights violations, Hernandez,18 F.3d at 136; Branum v. Clark,927 F.2d 698, 705 (2d Cir. 1991), or where he is proceeding pro se. Haines v. Kerner,404 U.S. 519, 520 (1972); McPherson v. Coombe,174 F.3d 276, 280 (2d Cir. 1999).

The standard for evaluating a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is the same as that used in evaluating a motion to dismiss under 12(b)(6). Irish Lesbian and Gay Organization v. Giuliani,143 F.3d 638, 644 (2d Cir. 1998); Encarnacion ex rel. George v. Barnhart,191 F. Supp.2d 463, 469 (S.D.N.Y. 2002). The court therefore must accept the allegations of the plaintiff's complaint as true, and draw all reasonable inferences in the plaintiff's favor. Irish Lesbian and Gay Organization,143 F.3d at 644.

Although Mr. Best never specifies that his action is being brought under Section 1983, that section provides the appropriate cause of action for his claims. See McPherson v. Coombe,174 F.3d 276, 280 (2d Cir. 1999) (Courts should "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'") (quoting Burgos v. Hopkins,14 F.3d 787, 790 (2d Cir. 1994)). Since the plaintiff is proceeding pro se, his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe,449 U.S. 5, 9 (1980) (per curiam) (quoting Haines,404 U.S. at 520).

B. Claims Against the City Defendants

The gravamen of Mr. Best's allegations against the City defendants is that he has been held at Bellevue against his will and without appropriate court orders or hearings, thus violating his due process rights. (Compl. at 1). Mr. Best seems to have asserted, in part, a substantive due process claim, alleging that the TB control statutes and regulations are unconstitutional and that the judicial hearings held in relation to his case were unconstitutional because (1) he disagrees with the ultimate outcome of these hearings and (2) he asserts that it was falsely alleged during these hearings that he had refused to take necessary medication. (Compl. at 3). Mr. Best also appears to challenge the actions that the City took against him in issuing the (d)(5) Orders and making applications to the New York Supreme Court for his continued detention. (Compl. at 2-3). In the Complaint, Mr. Best claims that when he first arrived at Bellevue, hospital staff informed him that he could legally be detained for five days without a court order after requesting release. (Compl. at 2). He then appears to allege that he was held for a longer time period than was allowed, making the eventual hearing invalid. (Compl. at 2). Mr. Best's second claim against the City defendants appears to be that his federal constitutional right to procedural due process was violated based on both the timing of the commencement of the proceedings in his case and the validity of the proceedings themselves. Both the substantive and procedural due process claims will therefore be examined.

1. Substantive Due Process Claims

Substantive due process comes into play where, regardless of the procedures followed, a governmental decision or action is so contrary to a fundamental right that it cannot be countenanced.See Daniels v. Williams,474 U.S. 327, 331 (1986) (substantive due process rights bar "certain government actions regardless of the fairness of the procedures used to implement them"). In Joyner v. Dumpson,712 F.2d 770 (2d Cir. 1983), the Second Circuit laid out a three-part analysis for evaluating substantive due process claims. See also Kia P. v. McIntyre,235 F.3d 749, 754 (2d Cir. 2000); Chi Chao Yuan v. Rivera,48 F. Supp.2d 335, 347 (S.D.N.Y. 1999) (applying the Joyner formulation). First, the court examines the nature of the interest at stake to determine whether it is a "fundamental right" protected under the Due Process Clause of the Fourteenth Amendment. Second, the court determines whether the defendants' actions have "significantly infringed" that fundamental right. Third, the court asks whether an "important state interest" justifies the infringement. See Joyner,712 F.2d at 777. Accordingly, Mr. Best's remaining claims will be analyzed under this framework.

Mr. Best's liberty is undoubtedly a fundamental right, and by detaining him against his will, the City defendants have "significantly infringed" upon that right. See Joyner,712 F.2d at 777. The remaining question is whether the state has demonstrated a substantial governmental interest in Mr. Best's continued detention.

The constitutionality of the New York TB control statutes has not yet been specifically addressed. It is well settled, however, that in the exercise of its police power, a state may confine individuals solely to protect society from the "dangers of significant antisocial acts or communicable disease."O'Connor v. Donaldson,422 U.S. 563, 582-83 (1975) (Burger, C.J., concurring); see also Minnesota ex rel. Pearson v. Probate Court of Rumsey County,309 U.S. 270, 273-74 (1940);Jacobson v. Massachusetts,197 U.S. 11, 25-29 (1905);Compagnie Francaise de Navigation a Vapeur v. State Board of Health, Louisiana,186 U.S. 380, 391-92 (1902). Courts have consistently upheld the constitutionality of quarantine as a public health measure. In Jacobson, the Court stated that "[a]lthough this court has refrained from any attempt to define the limits of [the state's police] power, . . . it has distinctly recognized the authority of a State to enact quarantine laws and health laws of every description." 197 U.S. at 25 (internal quotation marks and citations omitted). Likewise, the detention of individuals with dangerous mental illnesses is generally justified by their danger to the public.See O'Connor,422 U.S. at 573.

The Supreme Court, in the civil commitment cases, has set constitutional standards that must be met before an individual can be detained. The central requirements set out by the Court are the right to a particularized assessment of an individual's danger to self or others and the right to less restrictive alternatives.

a. Particularized Assessment

In the case of civil commitment of the mentally ill, the Supreme Court has found that the individual must exhibit behavior that puts himself or others in danger. "Assuming that [mental illness] can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom." O'Connor,422 U.S. at 575 (citations omitted); see also Humphrey v. Cady,405 U.S. 504, 509 (1972) (holding that an individual can be detained for mental illness only when his "potential for doing harm, to himself or others, is great enough to justify such a massive curtailment of liberty."). Accordingly, the fact that an individual has active TB does not itself justify involuntary detention; rather, that individual's circumstances must be analyzed to determine whether he or she would constitute a danger to society.

In New York, the detention of an individual with TB has been upheld by state courts based on a finding of an individual's "inability to comply with the projected eighteen to twenty-four month prescribed course of medication," based upon a "refusal to cooperate with . . . repeated efforts to have her participate in voluntary forms of directly observed therapy." City of New York v. Doe,205 A.D.2d 469, 470, 614 N.Y.S.2d 8, 9 (1st Dep't 1994). An individualized assessment, focusing on whether the patient would comply with medical treatment, is necessary to satisfy the substantive due process concerns associated with involuntary civil commitment.

Here, Mr. Best has demonstrated that he poses a risk for both himself and the community. He has refused to take prescribed medications and expressed interest in leaving the community which would make it difficult to monitor his progress. (12/13/02 Tr. at 29; 2/14/03 Tr. at 16, 41, 42). This unwillingness to comply with treatment creates a high risk that the plaintiff will transmit TB to others. See Lawrence O. Gostin,Tuberculosis and the Power of the State: Toward the Development of Rational Standards for the Review of Compulsory Public Health Powers, 2 U. Chi. L. Roundtable 219, 259 (1995) ("A single individual with infectious tuberculosis can account for dozens of active cases, as well as hundreds of tuberculosis infections."). This risk makes the City defendants' determination that Mr. Best poses a threat to the public health reasonable and establishes a substantial governmental interest in depriving him of his liberty in order to protect the community.

b. Less Restrictive Alternatives

The existence of a substantial government interest is not enough to satisfy substantive due process, however, unless the State utilizes the least restrictive means available to advance that interest.

Even [when] the governmental purpose [is] legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

Shelton v. Tucker,364 U.S. 479, 488 (1960) (footnotes omitted). This doctrine has been applied by courts in reviewing the civil commitment of mentally ill individuals. See Protect Release v. Prevost,551 F. Supp. 1298, 1305 (E.D.N.Y. 1982);Lessard v. Schmidt,349 F. Supp. 1078, 1096 (E.D. Wis. 1972),vacated on other grounds,414 U.S. 473 (1973). Admittedly, less restrictive alternatives exist for TB control, including "free treatment at neighborhood chest clinics, voluntary hospitalization, voluntary [directly observed therapy programs], and finally compulsory [directly observed therapy programs], the latter being the most coercive form of intervention short of detention." Carlos A. Ball and Mark Barnes, Focus on Urban America: Public Health and Individual Rights: Tuberculosis Control and Detention Procedures in New York City, 12 Yale Law Policy Rev. 38, 56 (1994). However, less restrictive alternatives are inappropriate for an individual who is noncompliant with medical treatment. Mr. Best's refusal to continue taking medication, his plans for leaving the community, his communal living situation, and the strong governmental interest in protecting the community all support the conclusion that no less restrictive alternative exists in this case.

Mr. Best does not dispute the above-mentioned circumstances. Indeed, he has affirmed those facts in both the hearings at Bellevue and in his correspondence with the Court. (Letter from William Best dated March 5, 2003 at 1; Letter from William Best dated April 1, 2003 at 1; Undated letter from William Best at 3). In deciding on a Rule 12(c) motion, "consideration is limited to the factual allegations in [the] amended complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff['s] possession or of which plaintiff had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc.,987 F.2d 142, 150 (2d Cir. 1993);accord Cortec Industries, Inc. v. Sum Holding L.P.,949 F.2d 42, 47-48 (2d Cir. 1991). The pleadings include the complaint, the answer, and any written instruments attached as exhibits. SeeFed.R.Civ.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is part thereof for all purposes."); Alvarado v. Kerrigan,152 F. Supp.2d 350, 354 (S.D.N.Y. 2001). Courts have interpreted the term "written instrument" as used in Rule 10(c) to include documents such as affidavits and letters. See Schnell v. City of Chicago,407 F.2d 1084, 1085 (7th Cir. 1969), overruled on other grounds by City of Kenosha v. Bruno,412 U.S. 507 (1973); In re Wade,969 F.2d 241, 249 (7th Cir. 1992). Thus, it is proper to consider Mr. Best's letters to the Court as part of the pleadings for purposes of the Rule 12(c) motion. Therefore, because there are no material facts disputed in the relevant documents, this issue is appropriate for a 12(c) determination.

Accordingly, even when reading the pleadings generously and drawing all reasonable inferences in favor of the Mr. Best, he has not alleged a viable claim under § 1983 for violation of his substantive due process rights.

2. Procedural Due Process Claims

The Due Process Clause provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. As a general matter, an individual is entitled to procedural protection before he is deprived of a liberty interest. See Zinermon v. Burch,494 U.S. 113, 127 (1990) ("The Constitution requires some kind of a hearing before the State deprives a person of liberty or property."). It is well settled that "involuntary commitment to a . . . hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law." O'Connor,422 U.S. at 580 (citing Specht v. Patterson,386 U.S. 605, 608 (1967)). The issue of "whether [an individual's] constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests."Youngberg v. Romeo,457 U.S. 307, 321 (1982).

"In procedural due process claims, the deprivation by state action of a constitutionally protected interest in `life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon,494 U.S. at 126 (citing Parratt v. Taylor,451 U.S. 527, 537 (1981)); see also Carey v. Piphus,435 U.S. 247, 259 (1978) ("Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property."). As the Court stated inZinermon, "[t]he constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process." 494 U.S. at 126. Therefore, to determine whether Mr. Best was deprived of his constitutional right to liberty, it is necessary to determine what processes were available to him, and whether they were constitutionally adequate.

a. Procedural Standards Under Health Code § 11.47

Mr. Best points to the timing of the City defendants' applications for continued detention as the grounds for his procedural due process claim. The prerequisite for a Commissioner's Order under Health Code § 11.47 requiring detention of a person with active TB is that there is a:

substantial likelihood, based on the person's past or present behavior, that the individual cannot be relied upon to participate in or complete an appropriate prescribed course of medication or, if necessary, follow required contagion precautions for tuberculosis. Such behavior may include the refusal or failure to take medication or to complete treatment for tuberculosis, to keep appointments for the treatment of tuberculosis, or a disregard for contagion precautions.

City of New York v. Antoinette R.,165 Misc.2d 1014, 1020, 630 N.Y.S.2d 1008, 1009 (N.Y.Sup.Ct. 1995). Moreover, Health Code § 11.47 provides certain due process safeguards when detention is ordered including "requirements for an appraisal of the risk posed to others and a review of less restrictive alternatives which were attempted or considered." Id. Health Code § 11.47(e) sets out the timing requirements relevant to an order of detention in a TB case. Once a patient has requested release, the Commissioner must make an application for a court order authorizing detention within three business days. The application must include a request for an expedited hearing. After a request for release, detention is not permitted to continue for more than five business days without a court order authorizing a longer period of detention. In no event can an individual be detained for more than sixty days without a court order. The commissioner must seek further court review of the detention order every ninety days thereafter. The detainee also has the right to counsel, to have counsel provided, and to have friends or relatives notified. See Health Code § 11.47(e);see also Antoinette R.,165 Misc.2d at 1020, 630 N.Y.S.2d at 1012.

The procedures followed by the City defendants in relation to Mr. Best's detention were in accordance with the statutory requirements of Health Code § 11.47. When Mr. Best first requested to be released, DOHMH issued an initial isolation order, followed by a (d)(4) Order requiring Mr. Best to be detained at St. Vincents for TB treatment. Mr. Best requested release on November 26, 2002, and the third business day after that request was December 2, 2002 (since Thanksgiving Day occurred on November 28, 2002). SeeN.Y. Gen. Constr. Law §§ 20, 24. The City defendants filed papers to commence proceedings by an Order to Show Cause in New York State Supreme Court on December 2, 2002. The Order to Show Cause was signed that same day, although the rules would not have required it to be signed before December 4. Although Mr. Best makes reference to the fact that he was held for longer than five business days without a court order, it appears that he simply was not served with the Order until December 3, 2002. (Compl. at 2; Goldberg-Cahn Decl., Exh. E). According to Justice Gangel-Jacob's Order, however, Mr. Best was not required to be served until December 4. (Goldberg-Cahn Decl., Exh. E).

With respect to the (d)(5) Order, Mr. Best requested release on January 15, 2003, and the City defendants submitted their papers to the New York Supreme Court on January 17, 2003. (Goldberg-Cahn Decl., Exh. K; City Defendants' Memorandum of Law in Support of its Motion for a Judgment on the Pleadings ("City Def. Memo.") at 11)). The Order to Show Cause was signed on January 21, 2003. (Goldberg-Cahn Decl., Exh. L). Mr. Best and his attorney were both served with copies of the signed (d)(5) Order on January 22, 2003. (Goldberg-Cahn Decl., Exh. M).

b. Adequacy of Process

It is well settled that individuals who are detained pursuant to civil proceedings are entitled to various procedural rights, including the right to notice, to free counsel if indigent, to judicial review, and to cross-examine State witnesses. See Vitek v. Jones,445 U.S. 480, 494-96 (1980). To determine whether the procedural safeguards provided by Health Code § 11.47 are constitutionally sufficient to protect an individual's due process rights, the following factors must be considered:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Health Code § 11.47 sets forth the standards for the use of detention to control the spread of TB. The Second Circuit has addressed the constitutionality of other, similar mental hygiene laws. See Project Release, 722 F.2d at 975-76. In Project Release, the court determined that New York Mental Hygiene Laws §§ 9.13, 9.27, 9.37 and 9.39 met the minimum requirements of both substantive due process and procedural due process. The court held that:

The statutes at issue in Project Release provide the standards and procedures for the voluntary, involuntary, and emergency civil commitment of individuals with potentially dangerous mental illnesses. When a patient is "converted" from voluntary to involuntary status,

written notice must be given forthwith to the patient . . . who may demand a judicial hearing on the question of mental illness and the need for involuntary hospitalization. The hearing, if requested, must be held within three days of receipt by the court of the demand for such. The procedures for court authorization for retention of an involuntary patient when apply. If the court orders involuntary retention, that period cannot exceed sixty days from the date of the court order. Further retention may only be had in accordance with these procedures.

Project Release, 722 F.2d at 965 (internal citations omitted).

In our view, given the layers of professional [and judicial] review contained in the New York State Mental Hygiene Law's elaborate notice and hearing provisions, including notice to relatives and others designated by the patient, and the availability of a judicial hearing within five days of demand by the patient, relative or friend, as well as habeas corpus relief, we find that the statute meets procedural due process minima.

Id. at 975 (internal quotation marks omitted). Given the similarity in the statutes at issue in Project Release and the present case, the constitutional inquiry set out in Eldridge is largely the same for both cases.

As to the first Eldridge factor, involuntary commitment to a medical facility is obviously a significant restriction on an individual's liberty. Mr. Best has claimed that in addition to being deprived of his liberty, he has also suffered through his inability to pay certain bills and manage his financial affairs from Bellevue. (Letter from William Best received March 31, 2003). The damage to a patient's interests, however, can be mitigated through the patient's adherence to the prescribed course of medication and the willingness of the patient to work with medical personnel on developing a potential discharge plan.

Regarding the second factor, it appears that the State's procedures pose only a minor risk of erroneous deprivation, and this risk will not be significantly reduced by adding new regulations to those already required by the state. See Rennie v. Klein,653 F.3d 836, 850 (3d Cir. 1981) (en banc). Under the present scheme, individuals detained pursuant to Health Code § 11.47 must be detained pursuant to a court order within five days after requesting release, are entitled to a hearing where they can be represented by counsel and are entitled to periodic reviews of their detention status by the Commissioner. The scheme thus appears to "reflect a careful balance between the rights of the individual and the interests of society." Project Release, 722 F.2d at 974; see also Youngberg,457 U.S. at 322. The New York scheme falls well within the boundaries of what has been held to be an appropriate procedural framework for involuntary commitments. See, e.g., Doe v. Gallinot,486 F. Supp. 983, 994 (C.D. Cal. 1979) (probable cause hearing within seven days), aff'd,657 F.2d 1017, 1025 (9th Cir. 1981); Wessel v. Pryor,461 F. Supp. 1144, 1146-47 (E.D. Ark. 1978) (appearance before judge within twenty-four hours; probable cause hearing within seventy-two hours of appearance before judge; final hearing within twenty-one days of probable cause determination); Doremus v. Farrell,407 F. Supp. 509, 517 (Neb. 1975) (probable cause hearing within five days; full hearing with fourteen days);Kendall v. True,391 F. Supp. 413, 419 (W.D. Ky. 1975) (preliminary probable cause hearing required; final hearing within twenty-one days of confinement); Lynch v. Baxley,386 F. Supp. 378, 388 (M.D. Ala. 1974) (probable cause hearing within seven days; full hearing within thirty days of original detention); Bell v. Wayne County General Hospital at Eloise,384 F. Supp. 1085, 1098 (E.D. Mich. 1974) ("prompt" preliminary hearing, but five days deemed appropriate); In re Tedesco,421 N.E.2d 726, 730 (Ind.Ct.App. 1981) (probable cause hearing within seventy-two hours deemed appropriate); State ex rel. Doe v. Madonna,295 N.W.2d 356, 365 (Minn. 1980) (preliminary probable cause hearing within seventy-two hours).

Additionally, the standard of review mandated by Health Code § 11.47 is in accord with the standards of review required for the involuntary commitment of mentally ill individuals. Health Code §§ 11.47(d)(4) and (5) mandate that there be a "substantial likelihood" that an individual "may transmit to others tuberculosis because of his or her inadequate separation from others," or a "substantial likelihood, based on such person's past or present behavior, that he or she cannot be relied upon" to complete a prescribed course of treatment. Health Code §§ 1147(d)(4), (5). The "substantial likelihood" requirement defines and limits the power of the Commissioner to detain a patient with TB. The Supreme Court in Addington v. Texas441 U.S. 418, 428-29 (1979), held that to meet due process demands in a civil commitment proceeding the standard of proof used must be greater than a preponderance of the evidence.

Given the structure of the New York statute and its similarity to other constitutionally accepted schemes, the possibility of an erroneous result is minimized by the procedural safeguards. As the Supreme Court stated in Addington, "even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observation of the patient's condition . . . will provide continuous opportunities for an erroneous commitment to be corrected." 441 U.S. at 428. The New York statute thus provides sufficient opportunities for errors to be corrected and rights to be safeguarded.

The third Eldridge factor concerns the government's interest, including the function at stake and the fiscal and administrative burdens that additional procedural requirements would impose. The interest of the state in controlling the transmission of TB is clear. "In no municipality has the resurgence of tuberculosis been greater than in New York City. There are an estimated 600,000 to one million city residents who are infected with the tubercle bacilli, and approximately 6000 to 7000 New Yorkers have active tuberculosis." Ball Barnes,supra, at 41. Courts have traditionally been deferential to a state's ability to protect the public health. See Jacobson,197 U.S. at 25. Given this deference, New York State civil commitment schemes have been routinely upheld by the Second Circuit. See Rodriguez v. City of New York,72 F.3d 1051, 1062 (2d Cir. 1995); Project Release, 722 F.2d at 972. The court in Project Release concluded that:

the New York State civil commitment scheme, considered as a whole and as interpreted in Scopes [v. Shah,59 A.D.2d 203, 205-06, 398 N.Y.S.2d 911, 913 (3d Dep't 1977)] to include a showing of dangerousness, meets minimum due process standards without the addition of an overt act requirement. We believe that further inquiry concerning the extent to which such a requirement might decrease the chance of error . . . may be better explored in the legislative forum.

722 F.2d at 973-74 (citation omitted). The statutory scheme at issue here is sufficiently similar to that at issue in Project Release to conclude that the burdens imposed by Health Code § 11.47 are justified in light of the strong governmental interest at stake.

Given the availability of hearings, counsel, and periodic status review as well as the general similarity between Health Code § 11.47 and other public health schemes that have been held to adequately protect due process rights, the processes outlined in Health Code § 11.47 fall within the bounds of procedural due process. Based on the City defendants' strict compliance with these procedures, Mr. Best has failed to state a claim that his procedural due process rights have been violated by the City defendants.

B. Claims against St. Vincents

In the Complaint, Mr. Best claims that the staff at St. Vincents was "negligent in as far as not informing me of [the] Bureau of Tuberculosis Control phone number so my request to leave could go on Record." (Compl. at 11). He goes on to say that "[d]ue to [St. Vincents] negligence, I was deprived of months of freedom and believe I deserve compensation." (Compl. at 11). Mr. Best also seems to allege that he was held at St. Vincents for more than five business days after the date he requested to be released without a court order. (Compl. at 1).

Section 1983 creates a cause of action against anyone who, "under color of state law, deprives a person `of any rights, privileges, or immunities secured by the Constitution and laws.'" KA Radiologic Technology Services, Inc. v. Commissioner of the Department of Health,189 F.3d 273, 280 (2d Cir. 1999) (quoting Blessing v. Freestone,520 U.S. 329, 340 (1997)). "The core purpose of § 1983 is `to provide compensatory relief to those deprived of their federal rights by state actors.'" Hardy v. New York City Health Hospitals Corp.,164 F.3d 789, 795 (2d Cir. 1999) (quoting Felder v. Casey,487 U.S. 131, 141 (1988)). The Court has made it clear that a defendant's conduct satisfying the "state action" requirement of a Fourteenth Amendment claim will also satisfy the "under color of state law" requirement of a § 1983 claim. See Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 295, n. 2 (2001)

The Supreme Court has developed a number of tests to determine whether a private party's conduct constitutes state action. The Court has held that private activity is state action (1) when it results from the State's exercise of "coercive power," or when the State provides "significant encouragement, either overt or covert," (2) when a private actor operates as a "willful participant in joint activity with the State or its agents," (3) when the private entity is controlled by an "agency of the State," (4) when it has been "delegated a public function by the State," and (5) when it is "entwined with governmental policies" or when government is "entwined in [its] management or control."Id. at 296 (internal quotation marks and citations omitted).

St. Vincents is not a public hospital. It is non-profit, acute care hospital and is not a state entity. While Bellevue is part of the New York City Health and Hospitals Corporation ("HHC"), and as such, its actions would come under the ambit of Section 1983, see Ayala v. Bellevue Hospital, No. 94 Civ. 1551, 1999 WL 637235, at *3 (S.D.N.Y. Aug. 20, 1999), St. Vincents is not a member of HHC. Despite St. Vincents status as a private hospital, however, the decision to detain Mr. Best was compelled by the Commissioner and DOHMH and thus arose under the color of state law.

Health Code § 11.47 differs from other involuntary commitment statutes because the decision about whether an individual should be detained is not made by the physician, rather, it is made by the Commissioner and DOHMH. The role of the physician is to diagnose a patient with TB. After that point, the physician has no discretion about whether or not the individual is detained. In Okunieff v. Rosenberg, 996 F. Supp. 343, 349-50 (S.D.N.Y. 1998), the court found that a private hospital was not a state actor for purposes of § 1983 when its staff involuntarily committed a mentally ill individual pursuant to New York Mental Hygiene Law § 9.27, since "[e]ven though the [statute] provides the legal framework under which physicians may involuntarily commit a patient by creating procedures and standards for commitment, . . . it leaves the decision to commit completely to the physician's discretion." Id. at 350. In contrast, Health Code § 11.47 gives the physician no discretion, and is thus a statute of compulsion. This compulsion makes St. Vincents a state actor for purposes of § 1983 and the Fourteenth Amendment.

1. Negligence Claims

Mr. Best appears to hinge his claims of negligence against St. Vincents on its liability for the subsequent actions of the City defendants. (Undated letter from William Best at unnumbered 7th page). In regard to St. Vincents, Mr. Best writes that "[d]ue to their negligence I was deprived of months of freedom and believe I deserve compensation and hope the conditions that allowed them to do this [are] corrected." (Undated letter from William Best at unnumbered 7th page). Because the claims against the City defendants should be dismissed for failure to state a cause of action under § 1983, any negligence claims against St. Vincents based on subsequent actions by the City defendants should also be dismissed. See Mondave v. Long Island Jewish Medical Center,501 F.2d 1065, 1072-73 (2d Cir. 1974).

2. Civil Rights Violations

Mr. Best also claims that he was detained at St. Vincents for longer than the five day period allowed by Health Code § 11.47. Because St. Vincents has moved for dismissal under Rule 12(b)(6), the truth of Mr. Best's complaint and subsequent letters is assumed, and only its legal sufficiency is tested.See, e.g., De Jesus v. Sears, Roebuck Co., Inc.,87 F.3d 65, 69 (2d Cir. 1996).

There is some confusion by Mr. Best as to the actual date he requested to be released from St. Vincents. In one letter to the court, Mr. Best asserts that he requested to leave St. Vincents on November 23, 2002. (Undated letter from William Best at 7th unnumbered page). In another letter, he claims that he requested to leave on November 25, 2002. (Letter from William Best dated March 24, 2003 at 1). Although there is support outside the pleadings for assuming the validity of the November 25 date (Goldberg-Cahn Decl., Exh. B at 2; 12/13/02 Tr. at 17), those documents are not properly referenced for purposes of a Rule 12(b)(6) motion. See Tarshis v. Riese Org.,211 F.3d 30, 39 (2d Cir. 2000) (citing Allen v. WestPoint-Pepperell, Inc.,945 F.2d 40, 44 (2d Cir. 1991)). For purposes of deciding this motion, however, it does not matter which day is accurate, since either date would be within the five-day period in which DOHMH was allowed to have Mr. Best detained before obtaining a court order. It will be assumed that Mr. Best requested release on Nov. 23, 2002, for purposes of this motion. See Williams v. Gorton,529 F.2d 668, 672 (9th Cir. 1976) (any doubts are resolved in favor of the pleader).

On the day Mr. Best requested release, the hospital contacted DOHMH which subsequently issued an Notice of Obligation to Isolate pursuant to Health Code § 11.47(d)(4). (Goldberg-Cahn Decl., Exh. B). Health Code § 11.47(e) provides that after such an order was issued, Mr. Best could be held for up to five business days before a court order was required. According to his Complaint, Mr. Best was transferred to Bellevue on November 26, 2002. (Compl. at 1; 12/13/02 Tr. at 17). Assuming the truth of Mr. Best's allegations, he was not held at St. Vincents longer than five days and has no claim against the hospital based on such a violation.

Mr. Best can prove no set of facts in support of his claim which would entitle him to relief. See Conley,355 U.S. at 45-46. Therefore his claims against St. Vincents should be dismissed.

Conclusion

For the reasons set forth above, I recommend that the St. Vincents motion to dismiss pursuant to Rule 12(b)(6) be granted and that the City defendants' motion for judgment on the pleadings under Rule 12(c) be granted as well. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Richard M. Berman, Room 201, 40 Foley Square, New York, New York 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.